Clifford L.,1 Complainant,v.Kevin K. McAleenan, Acting Secretary, Department of Homeland Security (Transportation Security Administration), Agency.Download PDFEqual Employment Opportunity CommissionAug 18, 20202019003138 (E.E.O.C. Aug. 18, 2020) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Clifford L.,1 Complainant, v. Kevin K. McAleenan, Acting Secretary, Department of Homeland Security (Transportation Security Administration), Agency. Appeal No. 2019003138 Agency No. HS-TSA-01701-2018 DECISION On March 26, 2019, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s March 4, 2019 final decision concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. For the following reasons, the Commission AFFIRMS the Agency’s final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Lead Transportation Security Officer (LTSO), SV-1802-F, at Baltimore-Washington International (BWI) Airport, in Hanover, Maryland. On June 19, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American) and reprisal (prior protected EEO activity) when: (1) from May 6, 2018, and continuing, management has ignored Complainant's complaints regarding a co-worker; and (2) on May 8, 2018, management notified Complainant that he was not selected for the position of Supervisory Transportation Security Officer (STSO), G-Band, as advertised under Vacancy Announcement BWI-18-431767. 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non-parties and the Commission’s website. 2019003138 2 After the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge. In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination or reprisal as alleged. FACTUAL BACKGROUND2 Claim 1 - Harassment Complainant identified five incidents where he asserts that Transportation Security Officers (TSOs) talked back to him and accused him of harassing them when he checked on things in checked baggage, corrected them, or instructed them to return to work from their breaks. Incident 1 Complainant claimed that on May 6, 2018, he was just doing his job by checking on the checked baggage area when two TSOs (TSO1 and TSO2) indicated that he was “harassing” them by checking on that area. Complainant stated that TSOI said that he “was bothering them by going up there and checking on things,” and, according to Complainant, TSO1 stated that Complainant “should stay downstairs.” TSO1 denied making the statements that Complainant attributed to him but indicated that he told Complainant that his presence was making them feel “uncomfortable,” and also stated that he notified his first-line supervisor that Complainant's “constant hovering over us makes more than just myself uncomfortable.” TSO2 indicated that Complainant was “staring” at her checked baggage team “without saying a word,” which made her team, including TSO1, feel “uncomfortable.” Complainant stated that he did not bring Incident 1 to the attention of his first- line supervisor (S1), until Incident 2 (below) occurred on May 14, 2018. Incident 2 Complainant also alleged that on May 14, 2018, TSO2 was using a computer when she should have been checking baggage. Complainant stated that TSO2 “refused to return to checked baggage even after I spoke to her about it twice.” TSO2 stated that she told Complainant that he was making her feel “uncomfortable” and also told Complainant, “I feel like you are harassing me because once I told [Complainant] that my supervisor told me to get my [online training] done, and I was doing [my online training], that should have been the end of it, [Complainant] should not have kept standing behind my back staring at me.” Complainant indicated that he reported to S1 what occurred on May 6, 2018, and May 14, 2018, and stated that S1 said he would “take care of it.” Complainant also noted that after speaking with S1, TSO2 “was obviously upset.” S1 does not recall Complainant reporting Incident 1 or Incident 2 but stated that TSOs “complained to me that they felt they were being watched and criticized by [Complainant].” 2 The facts are not disputed, unless stated otherwise. 2019003138 3 S1 also stated, “I expressed to [Complainant] that he had to be careful about his actions and his words, that he had to choose his words carefully, and if he saw something that merited correction, he should bring that to me and I would address it as the supervisor.” S1 further stated that he told Complainant that “it was not what [Complainant] said, but how he said it” that raised issues for the TSOs. Incident 3 Complainant claimed that on July 16, 2018, he reported an incident to a Supervisory Transportation Security Officer (STSO1) where he asked a Transportation Security Officer (TSO3) to get off a table, which TSO3 did, and then asked TSO3 to conduct checked baggage duties, but TSO3 refused. STSO1 stated that she met with Complainant and TSO3 to address the issue. STSO1 also affirmed that “[TSO3] tried to explain to [Complainant] that there was no need for TSO3 to [change her location] because the flow of bags was coming down slowly and she could see the bags from where she was standing” and noted that TSO3 “did not like the way [Complainant] was talking to her and [TSO3] began to raise her voice.” STSO1 also asserted that during the meeting, TSO3 apologized to [Complainant] for raising her voice,” and STSO1 stated, “[b]oth officers came to a consensus and there were no more issues reported.” Incidents 4 and 5 Complainant stated that on June 7, 2018, he told a Transportation Security Officer (TSO4) to mark unknown bags, per the Agency's Standard Operating Procedures (SOPs), and further stated that TSO4 “got mad” and said he does not need a “baby sitter.” Complainant indicated that TSO4 was written up for this incident Complainant also stated that on August 9, 2018, the same issue arose, where TSO4 did not mark an unknown bag so that it could be properly screened, so Complainant reported TSO4 to STSO1. STSO1 explained that she met with Complainant and TSO4, separately and together, to get their sides of the story, so that the matter could be resolved, and stated that Complainant accused TSO4 of lying. TSO4 accused Complainant of creating a hostile work environment for himself and other TSOs, which led to both Complainant and TSO4 being ordered to stay away from each other while management conducted an administrative investigation. An administrative investigation was conducted, regarding Incident 5 pursuant to Agency policy. Complainant’s second-line supervisor (S2) reviewed the evidence regarding Incident 5 and determined that when Complainant confronted TSO4 about the unmarked baggage, the situation escalated into a heated argument, that the conduct did not violate the Agency's policies against workplace violence or a hostile work environment, and as a result, the order for Complainant and TSO4 to stay away from each other during the administrative investigation was rescinded. 2019003138 4 Claim 2 - Non-Selection Complainant submitted a timely application for an STSO position advertised under Vacancy Announcement Number (VAN) BWI-18-431767.3 Complainant was placed on the certificate of eligible candidates and interviewed for the position by a three-member interview panel (IP) which included a STSO (P1), a Transportation Security Specialist - Explosives (P2) and a Training Specialist (P3). The Assistant Federal Security Director for Screening (SO) served as the selecting official for the STSO positions at issue. SO explained that when assessing the candidates, he first considered their interview scores, and then he looked at their performance evaluation scores (Transportation Officer Performance System, or TOPS) for the most recent year (i.e., FY2017), and reviewed the candidates résumés. SO further explained that he selected four candidates (SE1 - Black, no EEO activity, SE2 - Black, no EEO activity, SE3 - Black, no EEO activity, and SE4 - Hispanic, no EEO activity) for the position of STSO. SO also stated that he selected SE1 because she received 33 out of 35 points on the interview, and she had a perfect TOPS score of 5. SO noted that SE2 received 25 out of 35 points on the interview and received an overall year-end TOPS rating of 4.55 (i.e., Achieved Excellence). SO further stated that SE3 received 25 out of 35 points on the interview and a score of 4.45 (i.e., Exceeded Expectations), on her TOPS. In addition, SO asserted that SE4 received 29 out of 35 points on the interview and a score of 4.65 (i.e., Achieved Excellence) on her TOPS. SO explained he did not select Complainant because Complainant scored only 13 out of 35 possible points on the interview. P2 explained that the highest score the candidates could receive for each response was a 5, with 1 being the lowest. He further noted that for each question, a 1 was unsatisfactory, a 3 was satisfactory, and a 5 was exemplary. The panel was given sample responses with benchmarks to score each candidates’ responses. Each panel member scored the candidates’ responses individually and at the end of the interview, they discussed the scores as a panel and agreed upon a consensus score for each response. If there was a discrepancy between their scores, the panelists would explain their score, and someone would adjust their score upwards or downwards if necessary. P2 stated that the first question was attention to detail, and he scored Complainant a 1 on this response. P2 stated what Complainant told the panelists did not involve completing a detailed task, nor did he describe anything he did that made him stay on track. He noted that Complainant also did not give any details of the task, but instead he told a “generic, off-the-wall story” which was entertaining but did not meet any of the criteria or benchmarks, so he received a 1. P2 affirmed that the second question related to critical thinking, and he scored Complainant’s response a 2. P2 explained that the question asked Complainant to describe a time when he was faced with a new or unique situation in which he was able to draw from previous experience to take a specific action. 3 There were multiple positions vacant under this announcement. 2019003138 5 P2 explained that Complainant did not describe a new or unique situation, but rather a “run of the mill bag check.” While Complainant did show that he met the SOP requirements, P2 explained that his response did not meet many of the specific benchmarks he needed to touch on for this response, so he received a 2. The third question pertained to coaching and mentoring. P2 explained that Complainant was to tell of a time when he helped someone else develop an improvement plan or meet a performance goal. According to P2, Complainant described a situation where a new TSO asked him how to do a bag check. P2 asserted that Complainant did not really explain that he developed a plan for the new TSO, but he did teach the TSO step-by-step how to do the bag check and showed her where the SOP was located. P2 stated that Complainant did not meet the criteria of the question, which was to help someone develop an improvement plan or meet a performance goal. P2 further explained that there was no “out of the box thinking” or an attempt to help mentor the TSO on an ongoing basis or follow through to help her meet a goal. P2 also stated that Complainant’s response was very basic and met a few minimal benchmarks, but not enough to meet the criteria for satisfactory, so he scored it a 2. The fourth question pertained to command presence. P2 stated Complainant needed to describe a time at work when someone challenged or questioned his authority. Complainant described that another TSO was doing a bag check and they were arguing back and forth about whether the job was done right. P2 asserted that this was not a situation in which someone was questioning his authority, but it was just a disagreement and Complainant’s answer fell between the examples for unsatisfactory and satisfactory, so he gave him a 2. The fifth question pertained to decisiveness. P2 stated that the question asked Complainant to describe a time at work when he had to make a difficult decision with limited information. Complainant provided an example where someone sent a bag down with a lock that they were unable to unlock. Ultimately, the passenger got on the flight after they were unable to obtain a key. P2 asserted that Complainant shared nothing in this response other than that he told someone he needed a key for the box. P2 noted that he gave Complainant’s response a 2, which he thought was generous, because Complainant followed the procedure and did not cut off the lock, but it did not really describe a difficult decision that he had to make with limited information. The next question pertained to incident management, and Complainant was to describe a situation in which security protocols were not followed properly. P2 explained that Complainant was to describe the situation, the potential risk, and what he did. P2 recalled that the situation Complainant provided was that a TSO was sitting without her Secure Identification Display Area badge displayed, and he told her to leave it out where everyone could see it. P2 also explained that Complainant said the TSO told him, “Mind your own business.” P2 noted that Complainant did not explain any potential risk or what he did other than to tell the TSO to keep the badge out. P2 scored this response a 1 and explained that Complainant identified a security protocol that was not being followed, but he did not meet any criteria for a satisfactory response. 2019003138 6 The last question pertained to overall oral communication. P2 explained that he scored Complainant a 1 in this category because Complainant mainly talked about people who screwed things up and did things the wrong way, in his opinion. P2 also stated that Complainant never explained any detail of what he did or explained or how he resolved it, nor did he completely answer any question. P2 further noted that the panel interviewed about 15 candidates for the STSO positions. He said that Complainant’s overall interview score placed him around last or second-to-last in the group. P2 noted that although Complainant liked to talk about people and share stories, he did not listen to the questions or address them in his responses. P2 further explained others who scored higher than Complainant thought about the question and found a situation specific to that question, answered the requirements of the questions, and met the benchmarks for the model responses. P1 and P3 also provided detailed explanations for their individual ratings assigned to Complainant’s interview responses which corroborated P2’s statements. Complainant asserted that every time he applied for a position, management banded together to keep him from getting that position. He noted the selectees had all been working on the checkpoint, which he alleged reflected that the interview board members were “in cahoots.” He reiterated his belief that his interview scores were low because this was “planned from the beginning.” He further stated that it appeared someone coached them on writing their statements. ANALYSIS AND FINDINGS As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,” and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). Hostile Work Environment Harassment of an employee that would not occur but for the employee's race, color, sex, national origin, age, disability, or religion is unlawful, if it is sufficiently severe or pervasive. To establish a claim of harassment a complainant must show that: (1) he or she belongs to a statutorily protected class; (2) he or she was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on their statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). 2019003138 7 Further, the incidents must have been “sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create an abusive working environment.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). Whether the harassment is sufficiently severe to trigger a violation of Title VII must be determined by looking at the circumstances, including the frequency of the discriminatory conduct, its severity, whether it is physically threatening or humiliating, or a mere offensive utterance, and whether it unreasonably interferes with an employee's work performance. Harris v. Forklift Systems. Inc., 510 U.S. 17, 23 (1993); Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994) at pp. 3, 6. The harassers' conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris. A single incident or group of isolated incidents will generally not be regarded as discriminatory harassment unless the conduct is severe. Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). Complainant asserted that based on his protected classes, he was subjected to a hostile work environment as evidenced by several incidents of what he believed to be discriminatory and retaliatory harassment. The Commission finds that Complainant has not shown that he was subjected to conduct sufficiently severe or pervasive to create a hostile work environment. We find the record supports the Agency’s conclusion that Complainant failed to present evidence that the actions of TSO1, TSO2, TSO3, and TSO4 were anything more than acts of subordinate TSOs expressing their displeasure with Complainant's approach to overseeing them. We also find the record devoid of discriminatory or retaliatory animus on the part of any of the TSOs or Complainant’s supervisors. Accordingly, we find that Complainant fails to establish an unlawful hostile work environment as alleged. Disparate Treatment (Non-Selection) Complainant must satisfy a three-part evidentiary scheme to prevail on a claim of disparate treatment discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). First, Complainant must establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). Second, the burden is on the Agency to articulate a legitimate, nondiscriminatory, reason for its actions. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Third, should the Agency carry its burden, Complainant must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the Agency were not its true reasons, but were a pretext for discrimination. McDonnell Douglas, 411 U.S. at 804; St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993). We assume, without deciding, that Complainant established a prima facie case of disparate treatment. We find that the Agency articulated legitimate, nondiscriminatory reasons for not selecting Complainant. 2019003138 8 As discussed above, Complainant did not perform as well during his interview as the selectees and received lower scores based on his responses to the interview questions. The panel members all confirmed that the selectees provided more detailed and responsive answers to the interview questions than Complainant. Complainant now bears the burden of establishing that the Agency's stated reasons are merely a pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996). Complainant can do this directly by showing that the Agency's proffered explanation is unworthy of credence. Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. at 256. A complainant can demonstrate pretext by showing that complainant's qualifications are plainly superior to a selectee's qualifications. See, e.g., Complainant v. Dep 't of Homeland Sec., EEOC Appeal No. 0120123014 (Sept. 11, 2014), citing Celestine v. Petroleos de Venezuela SA, 266 F.3d 343, 34 7 (5th Cir. 2001) (holding that differences in qualifications are not evidence of discrimination unless the disparities "are of such weight and significance that no reasonable person in the exercise of impartial judgment could have chosen the candidate selected over the plaintiff''). Here, based on the evidence in the record, Complainant failed to establish that his qualifications were plainly superior to the selectees. We note that Complainant failed to contest the Agency's explanation about his interview performance. Aside from Complainant’s bare, uncorroborated assertions that management conspired against him to place friends in the STSO positions, the record is devoid of testimonial and documentary evidence to support pretext or that any responsible management official (or the interview panel members) were motivated by discriminatory or retaliatory animus with respect to any action relevant to this claim. At all times, the ultimate burden remains with Complainant to demonstrate by a preponderance of the evidence that the Agency’s reasons were not the real reasons and that the Agency acted on the basis of discriminatory or retaliatory animus. Complainant has not carried his burden here. Accordingly, the Commission finds that Complainant has not established that he was subjected to discrimination or reprisal as alleged. CONCLUSION Accordingly, based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final decision. 2019003138 9 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tend to establish that: 1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or 2. The appellate decision will have a substantial impact on the policies, practices, or operations of the Agency. Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party shall have twenty (20) calendar days of receipt of another party’s timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). The request or opposition must also include proof of service on the other party. Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c). COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610) You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. “Agency” or “department” means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint. 2019003138 10 RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations August 18, 2020 Date Copy with citationCopy as parenthetical citation